An Unoriginal Joke, Part I

Guest Blogger

Charles Barzun






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Posted 8:00 AM by Guest Blogger [link]

Fixing Social Media: Media Apocalypse, Episode 2

JB

In this episode of Media Apocalypse, my colleagues interview me about how to regulate--and how not to regulate--social media.

Three key takeaways:

First, it's the business models, stupid! Instead of focusing on specific fights over content moderation, focus on the way that social media companies make money: the control of digital advertising networks and the collection and use of personal data, which drive social media companies to choose policies that have harmful social effects.

Second, content moderation is necessary for social media to perform their appropriate social function in the new digital public sphere.

Third, if content moderation is necessary, it's important to have many different social media sites, with many different affordances and rules, and not just a few very large ones. We need social media federalism, not social media centralization.  Current legal rules-- including the Computer Fraud and Abuse Act and IP law-- stand in the way of interoperability that would help cure the very real problems of network effects that drive social media centralization. Put another way, our current degree of centralization is not an inevitable feature of the social media landscape. It is the product of legal rules that we can and should change.

For more along these lines, see my ACM lecture here.


Posted 9:42 AM by JB [link]

AKA Jane Roe and the Human Cost of Homophobia

Linda McClain

The recently released documentary, AKA Jane Roe, is generating keen interest for its (spoiler alert!)  “deathbed confession” by Norma McCorvey, a/k/a Jane Roe in Roe v. Wade (1973), that her apparent conversion in 1995 from supporting abortion rights to born-again Christianity and the pro-life/anti-abortion cause was not genuine, but “all an act.”  McCorvey reveals (in words that may bring the lyrics of Bob Seger’s “Night Moves” to mind) that she used them and they used her:  “I took their money and they put me out in front of the camera and told me what to say and that’s what I’d say.” Evangelical minister Rob Schenck —at the time a militant leader of the anti-abortion movement -- corroborates her “confession.” In soul-searching statements, he admits to having wondered if she was “playing them” as they were “playing” her. He expresses regret for the unethical way that he and other religious leaders in the movement mistreated McCorvey, whom he describes as the movement’s prize, trophy, or “big fish” (a term she also uses to describe herself). That part of the documentary warrants the buzz it is generating, but so does another: the human cost of homophobia. McCorvey’s conversion and new role as spokesperson came with the price tag of ending her over twenty-year relationship with her partner, Connie Gonzales.  If “Jane Roe” had to die so Norma McCorvey could live (as Reverend Flip Benham, then of Operation Rescue, puts it, in the film), so too did McCorvey’s sexual identity as a lesbian because homosexuality was a grievous sin.


The documentary is a sobering reminder of the link between abortion and homosexuality in the culture wars of the 1990s. Just as McCorvey’s public “confession” at various anti-abortion events included an apology for her role in legalizing abortion and the “killing” of children, it often included a renunciation of her sinful lesbian lifestyle. One scene features McCorvey, along with Benham, burning pages from Roe v. Wade, a gay pride flag, and Quran.

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Posted 2:32 PM by Linda McClain [link]

Suing the President for Libel

Gerard N. Magliocca

In 1939, President Franklin D. Roosevelt addressed a Joint Session of Congress to mark the 150th anniversary of the First Congress. He talked about the Bill of Rights in that speech, as the first set of amendments was proposed by the First Congress. In describing the freedom of speech, FDR said this:

It is indeed a freedom which, because of the mildness of our laws of libel and slander, goes unchecked except by the good sense of the American people. Any person is constitutionally entitled to criticize and call to account the highest and the lowest in the land-save only in one exception. For be it noted that the Constitution of the United States itself protects Senators and Representatives and provides that "for any speech or debate in either House they shall not be questioned in any And that immunity is most carefully not extended to either the Chief Justice of the United States or the President. 

It seems to me that Joe Scarborough or the family of the young woman that the President is dragging through the mud every day should sue for libel and point out that constitutional immunity for injurious speech was expressly withheld from the President by the Constitution.

The President may well argue that, under the Supreme Court's precedents, his statements on this subject are "official" statements immune from civil liability. I'm not sure that characterization is correct, as I don't see what's official about them. If they are official policy, though, then the White House Press Secretary should have no problem repeating those statements at the podium as part of her official function. What does she have to lose?

UPDATE: Peter Schuck has an op-ed in The New York Times on the President's potential liability.
Posted 12:57 PM by Gerard N. Magliocca [link] (92) comments

Media Apocalypse, Episode 1

JB

Posted 11:00 AM by JB [link]

Balkinization Symposium on Boxing Pandora and American Secession-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

1. Jack Balkin, Introduction to Balkinization Symposium on Boxing Pandora and American Secession 

2. F.H. Buckley, Review of Waters, Boxing Pandora

3. Timothy William Waters, The Greatness of Bigness: Buckley’s American Secession 

4. Robert Tsai, Shall We Break Up? 

5. Robert Tsai, A More Orderly Disunion

6. Jack Balkin, American Secession—Easier Said than Done
 
7. Cynthia Nicoletti, Historical Path Dependency and Secession 

8. Michael Lind, Comment on Buckley and Waters 

9. Ilya Somin, Secession, Foot Voting, and Self-Determination 

10. Sandy Levinson, Is Secession a Good Idea in theory but Impossible in Practice?

11. F.H. Buckley, Response to the Symposium

12. Timothy William Waters, Secession – in America, and America: Part One 

13. Timothy William Waters, Secession – in America, and America: Part Two








Posted 9:30 AM by JB [link]

Secession – in America, and America: Part Two

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).





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Posted 9:30 AM by Guest Blogger [link]

Secession – in America, and America: Part One

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).



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Posted 1:30 PM by Guest Blogger [link]

Response to the Symposium

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

F.H. Buckley


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Posted 9:30 AM by Guest Blogger [link]

Antivaxxers and gay rights

Andrew Koppelman

Posted 2:14 PM by Andrew Koppelman [link]

The Crisis is Exposing the Harm Structural Attacks on Anti-Poverty Programs Have Done

David Super

     Public spending programs consist of two main elements:  a structure, and a stream of money that is spent through that structure.  This is true of defense programs:  you need a decision that what you want to build is an aircraft carrier and then several years of funding while the carrier is built.  This is true of Social Security, which has a retirement age, relationship criteria for survivors’ benefits, and a standard for the severity of disabilities required to receive benefits on that basis as well as a dedicated funding stream. 

     This gives programs’ opponents two possible targets.  Those opposed to an arms race in space could try to prevent President Trump from establishing a coherent Space Force or seek to block its annual appropriations.  Opponents of a southern border wall erred many years back in agreeing to legislation authorizing it to be built, likely assuming that no one would be crazy enough to fund such a wasteful and ineffective undertaking.  The decarceration movement can seek to block or reduce prison sentences or hope that starving corrections budgets will create pressure for early releases.

     The same choices have always faced opponents of anti-poverty programs.  For those preferring to spend money on other things – tax cuts, spending programs popular with more-affluent voters, or whatever – the most natural move would seem to be cutting programs’ spending.  And cut we have on many occasions at both the federal and state levels.
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Posted 11:51 AM by David Super [link]

What schools might look like this fall

Sandy Levinson

The very best piece I have read on the near-insanity of reopening our colleges and universities (and law schools) this fall was published earlier today by Josh Blackman on the Volokh Conspiracy.  It deserves to become viral and the subject of national discussion, given the almost literally fantastic desire of political "leaders" to pretend that we have turned the corner--rather than, at best, reached only the end of the terrible beginning--of the ravages threatened by Covid-19.  Josh, of course, is a leading light among conservative legal academics.  He has even been accused, on occasion, of being an apologist for some of the legal positions taken by the Trump Administration.  There is nothing remotely "political" or "ideological" in his essay, however.  It is a heartfelt analysis of where we are, or should be, with regard to "reopening" our basic institutions (including, for that matter, churches and other places of public worship).  Nothing any of us has written is likely to be more truly important to current discussion.  Quite literally everyone should read it and, if one disagrees with it, explain exactly why.
Posted 12:06 AM by Sandy Levinson [link] (78) comments

Will Congress Act?

David Super

     On Friday, the House of Representatives passed the “Health and Economic Recovery Omnibus Emergency Solutions Act” (the “HEROES Act”) by a less-than-stirring 208-199 vote.  Retiring Rep. Peter King (R-NY) was the only Republican to vote for it; fourteen Democrats, mostly in marginal seats, voted against it.  Senate Majority Leader Mitch McConnell (R-KY) insisted that further legislation was not yet needed and pronounced the House bill a non-starter in the Senate. 

     Showing he has lost none of his flare for irony, Sen. McConnell declared that the bill “includes a massive tax code giveaway for high earners in blue states. Working families are struggling to put food on the table, but House Democrats are prioritizing millionaires on the coasts.”  Meanwhile White House economic advisor Larry Kudlow, having not received the memo, insisted that massive capital gains tax cuts and reductions to corporate income taxes should replace extended unemployment compensation in any future package. 

     The Senate spent the week meeting what it regards as an urgent public need – confirming still more right-wing judges – and then adjourned for an extended Memorial Day recess.  When it will resume regular sessions is unclear.  

     Then the Congressional Budget Office (CBO) released further devastating estimates of economic damage, mirroring Goldman Sachs’s prior downward revision of its estimates.  Now Senator McConnell says further legislation may be “not too far off.”  What should we expect?

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Posted 11:52 PM by David Super [link]

Forms of Constitutional Idolatry

Guest Blogger

Brian Christopher Jones
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Posted 9:30 AM by Guest Blogger [link]

Vik Amar on Preferential Treatment of In-State Law Schools and their Graduates

Jason Mazzone

Some governmental responses to the Coronavirus pandemic (and other emergencies) present difficult constitutional questions. But in other cases the questions (and answers) are easy. A recent example is the announcement by bar administrators in New York and other states that in allocating limited bar exam seats they will give priority to the graduates of the law schools of their own state--an obvious violation of the dormant commerce clause doctrine. Vik Amar's analysis of the issue today at Justia is essential reading. 
Posted 11:07 AM by Jason Mazzone [link]

Is Secession a Good Idea in theory but Impossible in Practice?

Sandy Levinson

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Posted 9:30 AM by Sandy Levinson [link] (51) comments

More on potential chaos

Sandy Levinson

The Washington Post has just put up an op-ed of mine,  “If Trump and Pence both get very sick, it’s not clear who would be president."  It elaborates my earlier argument that the most likely short-run potential for sheer chaos is the simultaneous illness of both Trump and Pence and, thus, having to face both the policy and constitutional problems surrounding the Succession in Office Act.  

But I suspect that some readers of my screeds against our sociopathic president will be amused by the responses of some of the Washington Post readers, who read my column, given the fact that I'm from Texas and that I express concern, rather than joy, at the prospect of Nancy Pelosi becoming president through the Act, as exhibiting my Trumpista tendencies.  What this demonstrates, I think, is the absolute pervasiveness of a "hermeneutics of suspicion" whereby increasingly no one believes that anyone else is either capable of, or is in fact, making good-faith arguments that transcend raw partisanship.  No one should have any doubt that I continue to detest our sociopathic president and that I would far prefer a Pelosi presidency.  But I also believe that the Succession in Office Act would be a truly terrible way of bringing that presidency about and that the fact that it remains on the books is a tribute to the sheer thoughtlessness of Congress with regard to the all-important problem of maintaining "continuity in government."  If this makes me a Trumpista, so be it, though it should be obvious that my argument also applied to the prospect of Paul Ryan becoming president should anything have happened to both Obama and Biden or Newt  Gingrich succeeding Clinton and Gore in similar circumstances.  



Posted 12:39 PM by Sandy Levinson [link]

What is "essential" about the Electoral College?

Sandy Levinson

I cannot refrain from adding my own comment regarding Prof. Barzun's very interesting post below about constitutional oaths.  I gather than the essay he's discussing distinguishes between "essential" and "incidental" features, so that we are obligated to remain faithful to the "essential" features of the 1787 Constitution unless, as with the slavery compromises, they have been formally amended.  So what about the way we elect our presidents?  Is that "essential" or "incidental"?  I ask this in the context of the debate about "independent," "rogue," or "Hamiltonian" electors.  Keith Whittington, an avowed originalist, agrees that the "original understanding," however determined (unless, of course, that includes early changes in constitutional meaning, was that electors were to be "trustees" charged with selecting the "best persons" to be president and vice-president (though, of course, they did not formally distinguish candidates for those two offices until after the 12th Amendment, in the 1804 election.  But, says Whittington, it became clear by the early 19th century that, contrary to the wishes of the Framers, we had developed a political party system, and expectations as to the behavior of electors changed.  So the obvious question, to a Whittingtonian originalist, is whether this constitutes a "change" in constitutional meaning, or whether it counts as a faithful rendition of original meaning.  I'm not particularly interested at this moment in rehashing the arguments as to the "true" original meaning.  Rather, if one agrees with Whittington, does that have consequences for the essayists Prof. Barzun is discussing?  I.e., is how we select presidents, including the original conception of independent electors, part of the constitutional "essence," or is it merely an "incidental feature," similar, say, to Inauguration Day?  And, more to the point, how exactly does one determine what is "essential" or "incidental"?  One would think that electing presidents is something really central to the American political system.  But maybe not.  Quite literally, who knows?

One other quite obvious question:  Assume that one is completely confident that originalism requires independent electors, just as James Madison never ever said he was mistaken in 1791 in arguing that the Bank of the United States was unconstitutional.  But he famously signed the charter for the Second Bank, citing the acceptance by the public and the courts (though not yet the Supreme Court) of the constitutionality of the First Bank.  Similarly, one might well agree with Whittington that the original meaning of the Electors Clause in fact changed by, say, 1812.  So does one take an oath to the "true" Original Constitution or to the Constitution as dynamically amended, without any use of Article V, at least up to the time that one takes the oath?  In any event this would require recognizing that, say, the oath taken by Herbert Hoover was significantly different from the oath taken by Harry Truman or, more to the point, Richard Nixon and Ronald Reagan, given the repudiation of the pre-New Deal understanding of the Commerce Clause in favor of the post-Darby, Wickard v. Filburn understanding that has, in fact, been explicitly reaffirmed by the Rehnquist-Roberts Court.  And, of course, it's also the Constitution that includes the legitimacy of the ADministrative State.  Is that "essential" or "incidental"?  And what is the meaning of  Gorsuch's and Kavanaugh's oaths to "this Constitution"?

These do not seem like very sophisticated questions to me.  But they do seem sufficient to make the theory, as described, wildly implausible, if it requires repudiation of vast parts of our standard-form understanding of the present Constitution, or vacuous, if it turns out that everything I'm describing is in fact part of the "incidental" Constitution that is open to change.
Posted 9:15 PM by Sandy Levinson [link] (52) comments

The Oath Argument

Guest Blogger

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Posted 11:30 AM by Guest Blogger [link]

The "chaos" we fear and the chaos we ignore

Sandy Levinson

Justice Kavanaugh made a great deal of the possibility of "chaos" ensuing should the Court rule that electors can no more be "instructed" by state law on how to vote than can those other representatives elected to the House or Senate.  "Chaos" has become a mantra for those, such as the editorial board of the Washington Post, who believe that states should in fact be able in effect to instruct electors.  It is as if they suddenly perceive Godzilla threatening an otherwise stable American constitutional order.

My own view, for what it is worth, is that Larry Lessig was completely correct in his argument and that this should be regarded as a relatively easy case, especially if one purports to be an originalist.  If the Court in fact rules against Lessig, as most people apparently believe will be the case, it will be entertaining, to say the least, to see how the self-styled denizens of originalism explain their willingness to ignore what is quite clear about the "original meaning" of the electoral college as representatives of the public called upon to make decisions in the public interest as to who would be best suited to take on the roles as president and vice president.  The fact that electors are very particularistic "representatives" does not in the least change that fundamental character.  If we wanted direct democracy (which I am more sympathetic to than most people I know), we'd simply scuttle the electoral college in favor of a national vote.  We haven't.  As a matter of fact, Kavanaugh's concerns about "chaos" seem overblown inasmuch as Lessig demonstrated that we've had the "problem" of "independent," "rogue," "faithless," or "Hamiltonian" electors, depending on your own nomenclature, since at least 1796, and they have not generated chaos.  To be sure, one can envision a situation when that is possible--the black swan possibility.  But if one adopts as a general rule of constitutional interpretation (or construction) that one must always decide in terms of imagining the worst possibility, however small, and crafting doctrine accordingly, that would have significant consequences indeed.  In Printz, for example, the Court seemingly said that no circumstances at all would every justify the national government's "commandeering" state officials to implement national policy.  Perhaps that makes sense as a general practice, though I have my doubts even there.  But it is idiotic to say that even in times of genuine emergencies, state officials should be free of being "conscripted," if that is the proper term, to serve vital national goals.

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Posted 12:14 PM by Sandy Levinson [link] (78) comments

Secession, Foot Voting, and Self-Determination

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Ilya Somin
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Posted 9:30 AM by Guest Blogger [link]

Comment on Buckley and Waters

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).


Michael Lind


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Posted 9:30 AM by Guest Blogger [link]

Historical Path Dependency and Secession

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Cynthia Nicoletti


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Posted 9:30 AM by Guest Blogger [link]

Senator/Vice President Warren

Sandy Levinson

A major impediment to Elizabeth Warren's becoming Joe Biden's running mate is said to be the fact that Charlie Baker, the immensely popular governor of Massachusetts, is a Republican who would presumably appoint a Republican to succeed her in the Senate until a special election could be held later in the spring.  The Democrats can scarcely afford to lose a single seat (unless, of course, the GOP keeps the Senate anyway, in which case we're basically all doomed.)  But consider the following two points:

1.  Senator Warren would not be obligated to resign her seat, under any theory of the Constitution, until noon on January 20, 2021.  That means, among other things, that she'd be on the floor to participate in the all-important vote (assuming Democrats capture the Senate) to eliminate the filibuster in its entirety, which provides the only chance that a President Biden could in fact effectively govern.  Otherwise, Mitch will simply do whatever he can to make Biden completely ineffectual.

2.  More interestingly, it's not self evident that the Incompatibility Clause, Article I, Section 6, prevents a senator from serving also as President or Vice President.  As Seth Tillman has argued, it is possible to read the term "civil Office under the Authority of the United States" or the term "any Office under the United States" to refer only to members of the Executive Branch who are appointed by the President.  The President enjoys her status no "under the Authority of the United States," but rather under the direct authority of the Constitution.  To be sure, this argument would probably strike most non-lawyers (and, admittedly, probably most lawyers as well) as implausible.  But it goes along with the argument that Tillman and Josh Blackman have made about the inapplicability of the Emoluments Clause to the President.  I am personally not convinced, but the argument cannot be dismissed as simply frivolous.  In any event, it does offer an interesting way by which Senator Warren could keep her seat while serving as VP (and as President of the Senate).  A major problem with this argument is that it might end up giving her two votes, one as senator and one as VP to break ties.  One wants to think that that can't be possible, but then, a literal reading of the Constitution allows the VP to preside over his own impeachment trial as well.

The more important point is surely the first, which would clearly allow her to retain her seat and, possibly, work out a deal with Baker whereby the special election to fill the obviously foreseeable vacancy would be scheduled for, say, early February.  In any event, for those of us who believe that Elizabeth Warren would make an excellent VP (and, obviously, President), it would be yet another demonstration of the deficiency of the current Constitution if she is foreclosed from that possibility by the admitted necessity of the Democrats retaining her seat.  (Presumably, they would pick a better candidate this time around than Martha Coakley, such as Ed Markey if he is beaten in the Democratic Primary by the upstart young Kennedy, unless Kennedy should have the grace to drop out upon Warren's selection as the VP candidate and announce that he will run, unopposed in the Democratic primary, to fill her seat.
Posted 3:20 PM by Sandy Levinson [link] (79) comments

A More Orderly Disunion

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Robert Tsai

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Posted 9:30 AM by Guest Blogger [link]

Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Gerald Leonard and Saul Cornell's book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).


1. Jack Balkin, Introduction to the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic

2. Mary Sarah Bilder, White Male Aristocracy

3. Jud Campbell, The Natures of Constitutional Histories

4. Jonathan Gienapp, Constitutional Conflict (Almost) All the Way Down

5. Sandy Levinson, A Republic That We Clearly Did Not Keep

6. Mark Graber, The Van Buren/Lincoln Connection

7. Mark R. Killenbeck, A Frank Acknowledgment of Reality?

8. Gregory Ablavsky, Expanding the Cast of Constitutional Actors

9. Gerry Leonard, An Elusive Constitution

10. Saul Cornell, Popular Constitutionalism, Constitutional Politics, and the Founders’ Constitution



Posted 9:00 AM by JB [link]

American Secession—Easier Said than Done

JB

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).
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Posted 1:00 PM by JB [link]

Shall We Break Up?

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Robert Tsai

            In American Secession, F.H. Buckley has written a slim and breezy volume that pleads for recognition of the right to secede based on the compact theory of the U.S. Constitution and, bowing to the low prospects of that happening anytime soon, presents a menu of second-best solutions that might capture the spirit of secession without all of its pain. It’s a fun and quick read. The author is well read and jocular. Yet Buckley’s approach to the Constitution’s text and history is too cursory to be sound, and he glides over too many of the hardest normative questions raised by a right for people to exit a political community and take the marbles with them.

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Posted 9:30 AM by Guest Blogger [link]

The Greatness of Bigness: Buckley’s American Secession

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Timothy William Waters


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Posted 9:30 PM by Guest Blogger [link]

Review of Waters, Boxing Pandora

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).


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Posted 1:30 PM by Guest Blogger [link]

Balkinization Symposium on Boxing Pandora and American Secession

JB

I can see the Twitter feed now: "Balkinization holds symposium on balkanization." Go ahead, joke all you want. Just as long as you finally learn to spell the name of this blog correctly.

In any case, this week and next at Balkinization we will feature a symposium on two new books on political secession: Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Frank and Tim will begin by reviewing each others books. Next follows a terrific group of commentators-- who have all decided to go their own ways-- including Mark Graber (Maryland), Sandy Levinson (Texas), Michael Lind (Texas), Cynthia Nicoletti (Virginia), Ilya Somin (George Mason), Robert Tsai (American University), and myself.  Sandy and Mark have agreed not to create a breakaway blog of their own.

At the conclusion, Tim and Frank will respond to the commentators (peacefully, and with a smooth transition to the new regime).








Posted 9:00 AM by JB [link]

Popular Constitutionalism, Constitutional Politics, and the Founders’ Constitution

Guest Blogger

For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).


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Posted 9:30 AM by Guest Blogger [link]

An Elusive Constitution

Guest Blogger

For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

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Posted 1:00 PM by Guest Blogger [link]

The most likely constitutional crisis, coming to a country near you

Sandy Levinson

It appears that both Trump and Pence are now being tested daily, Trump because of a valet who apparently regularly served him meals and Pence because his press secretary (who is also Stephen Miller's wife) has tested positive.  The "adults" at the White House are now engaging in voluntary quarantine, but one surely can't expect that of our sociopathic President and his loyal lapdog.  (I would say "poodle," but that would be unfair to the breed.)  But what if Trump  Trump and Pence both in fact come down with serious, Boris Johnson-level cases requiring hospitalization and ICU treatment, including the possibility of intubation.  At that point, what happens?  

In a well-functioning government (such as the UK), they would simply turn over power for however long to some legitimate official.  But in our system, it would be like a famous couple of episodes from West Wing, for if both Trump and Pence are disabled, then Nancy Pelosi would presumably become president, if she wanted to be, unless, that is, Trump's minions in the Cabinet simply refused to enforce the 25th Amendment and, perhaps like Wilson's minions in 1919, during a similar pandemic, pretended that he was fully functioning and able to lead the country (whatever exactly that means in the Age of Trump).  There are many reasons not to be supportive of what might be termed the Pelosi option,, beginning with the fact that she would, at least under conventional interpretation, be required to resign her position as Speaker.  (Seth Tillman has argued that that isn't the case,though, to put it mildly, one would not like to see this litigated in real time.)  If she declines the opportunity to take over the presidency until Trump and Pence recover, then the President would presumably become Charles Grassley, the current President pro Tem of the Senate and not someone usually thought of as presidential timber. 

In any event, it does seem to me that a well-designed constitution should be aware of the "continuity in government" issue and say something about it.  Leaving it up to Congress has produced the Succession in Office Act, which I believe to be both possibly unconstitutional (as argued by the Amar brothers) and, more certainly, dreadful public policy.  I have no idea what the actual odds of both Trump and Pence coming down with serious cases of Covid-19, but given their blatant recklessness and disdain for CDC guidelines, one has to presume that they're considerably higher than say, my own, given my scrupulous adherence to the Guidelines.  

Secession may be, as Mark Graber often suggests, a completely idle fantasy (or nightmare).  I suggest that the Continuity in Government problem is considerably less "fantastic."  As with the pandemic itself, it was readily foreseeable (though not exactly when it would occur), and the governing classes have preferred simply to ignore it in the hope that it would never happen.  But "black swans" occasionally do emerge, and the rest of us pay the price for the incompetence of the ruling elites.



Posted 6:58 PM by Sandy Levinson [link] (75) comments